Recent events in the United States have again brought the issue of workplace bullying to international attention. However, in contrast to many other cases, this recent issue arose in the context of a sporting team where it is alleged that a young player was a victim of 'hazing', namely that he was bullied and harassed as a way of initiating him into the culture of the team. With the new anti-bullying amendments to the Fair Work Act 2009 (Cth) (FW Act) due to commence on 1 January 2014, this case should remind sporting clubs and similar organisations that even though the sporting field is not your average workplace, it is still subject to workplace legislation.
In late October, a young player with the Miami Dolphins, a National Football League (NFL) franchise, left the team in order to deal with 'emotional issues' following allegations he was bullied over a period of time by a senior player. The allegations of bullying included that the younger player was verbally threatened and physically intimidated by the senior player. The senior player has since been suspended from the team indefinitely as a result of his alleged conduct. An independent investigation has been commissioned.
What Does This Mean for Australian Sport?
Professional sporting clubs have a unique culture where success on the field is directly related to a feeling of mateship and togetherness between the players on and off the field. While the sense of community promoted by team sports is seen by many as a positive thing, in certain circumstances it can manifest itself in the 'hazing' or 'bullying' of players to induct them into the close knit fabric of the 'team'. In addition, coaches sometimes employ bullying tactics to challenge their players and get the best possible results on the field.
While such conduct is often written off as 'bonding' or 'tough love', sporting clubs and similar organisations need to be aware that their players are still employees and the club is a workplace environment susceptible to all the legal risks associated with other workplaces. The amendments to the FW Act include a variety of anti-bullying provisions which will apply to sporting organisations, their staff, coaches and players.
Bullying in the Workplace
The Fair Work Amendment Act 2013 (Cth) (Amendment) seeks to add new provisions to the FW Act enabling a worker who is bullied at work to apply to the Fair Work Commission (Commission) for an order to stop the bullying. For the avoidance of any doubt, an athlete employed by a sporting organisation is a 'worker' within the meaning of the Amendment.
Under the Amendment, a worker is "bullied at work" when he or she is subject to "repeated, unreasonable behaviour directed towards a worker or a group of workers, of which the worker is a member, that creates a risk to health and safety".
The Commission will be required to list an application for an order to stop bullying within 14 days of that application being made and will have the power to make whatever order it deems appropriate, other than a pecuniary penalty order, to prevent the bullying from continuing.
Importantly, the Amendment also seeks to remove the prohibition on multiple actions, meaning proceedings may still be commenced under the relevant state based work health and safety legislation in relation to incidents of bullying even though the employee has made an application under the FW Act seeking an order to stop the same conduct. The Commission may also refer a matter to a work health and safety regulator where it considers it necessary and appropriate.
What Should Sporting Clubs and Organisations Do?
Recently, there has been a rise in the number of bullying claims made by employees across all industries. It is important that employees, including coaches and players, are made aware of the ramifications of bullying behaviour and that sporting organisations take positive steps to ensure they foster a strong anti-bullying culture which includes all coaching, playing and administrative staff.
Sporting clubs and similar organisations should ensure that:
they have an anti-bullying policy in place that reflects the upcoming Amendments
anti-bullying training is conducted for all employees, including managers, coaches and players
procedures for conducting investigations into allegations of bullying result in issues being dealt with appropriately and resolved in the best interests of the parties.
Sporting organisations rely on success on the field to ensure their commercial success. By not taking steps to ensure your organisation has appropriate policies and training aimed at ensuring players and administrative staff can identify and curtail bullying behaviour, your organisation may be putting itself at risk.